Tuesday, 30 October 2012

Should There Be A By-Election After Crossing The Floor?

Mr Smith was elected for our party and people should expect him to stick with the party. As he has left, he should resign his seat and seek re-election as he is now serving under false pretences.

We are glad that Ms Jones has done the best thing for her constituents and her nation by joining us.

After not getting a position in last night's reshuffle, Mr White has resigned the whip.

Ms Brown shrugged off calls to resign, saying that she has not left the party, the party left her.

The party leadership said that Mr Whatsisname is a high-profile highly-respected politician who would be an asset to his new party.

From time to time, a politician crosses the floor, changing their party allegiances, and there can be many reasons- both those given and those cynically assumed- for it. Seeing the way the wind is blowing, failing to get that government job they know they deserved, or simply finding themselves out-of-step with their party.

There was the old joke in the 1980s that Her Majesty's Opposition was really the House of Lords- dominated by Conservatives. There is some truth in this. Although the emphasis these days is on working peers being created, peerages were often used to kick MPs upstairs- in particular former Cabinet ministers- although the trend is moving away from this. Indeed, among Prime Ministers of the last half-century, Ted Heath, John Major and Tony Blair did not enter the House of Lords (it is possible that Major and/or Blair will do so at some point in the future).

The little joke has a serious point. Those given peerages in the Honours Lists were the older generation making way for the new, formed in a different set of circumstances. There was the massive creation of life peerages under Blair- which, despite criticism, was fair enough as Labour was way behind the Conservatives- and this leaves a Blairite group in the House of Lords who will, unless there is radical reform (now kicked into the long grass), become increasingly out-of-step with Labour if the party moves to the left.

Why do an older generation of peers disagree with the younger generation of MPs? Because they formed their opinions in a different era. A change in leadership can be a change in policy. The Labour that Blair led to victory at the May 1997 general election had different policies to the one that Neil Kinnock led to defeat at the April 1992 one. When Blair was first elected an MP at the June 1983 general election, it was on a platform of nationalising everything that moved (as well as everything that didn't), abolishing the House of Lords and withdrawing from the European Communities. As leader, he got rid of Clause 4, did the biggest peerage creation on record and made no attempt to hide his wish to be President of the European Council.

Parties are organic beings. They change policies. What can be the old orthodoxy can become the new heresy. A long-serving MP can find themselves out of sorts with the party without changing their views.

So, in some cases it can be I didn't leave the party- the party left me.

Whenever there is a defection, there is the common call for the elected politican to resign their seat and fight a by-election. But is this fair?

At one level it is, but even then you have to define what you mean.

Someone who resigns the party whip has left their party. So. as they are no longer with the party they were elected under, should they resign their seat? But, did they jump or were they pushed? If they jumped, then does that mean that if they stuck their heels in and waited to lose the whip then they don't have to resign their seat? Would we end up with courts having to put MPs (especially whips) in the witness box to determine exactly the cirucmstances of resigning the whip?

OK, you might say, allow MPs who lose the whip, or resign it to stay, and let's only worry about those who change party.

But even here there are definitions. Define "party". What if a coalition has a single whipping system? Are they one party or two? In the House of Commons, the third party is effectively the Demoratic Unionist Party now. And if you take a coalition to be functioning as a single party in Parliament (but two distinct parties in the country) then if a Labour/Liberal Democrat government were formed, then that too would be a single party for Parliamentary purposes.

So, picture legislation requiring a by-election to take place. And the Liberal Democrats decide to form a coalition with Labour.

It could then be argued that- if in Parliament a coalition is treated as a single party- the Liberal Democrat MPs have left one party and joined another. So, all of them face by-elections? And if effectively a new Labour/Liberal Democrat parliamentary grouping is a new party, does that mean it's distinct from the Labour one that existed, and therefore Labour MPs should all face by-elections?

And if you say that losing/resigning the whip is not a cause for an automatic by-election, but joining a new party is, then what happens when someone is an MP for a party in everything but name, for example Jim Kilfedder, who was MP for Down North from the June 1970 general election to his death in March 1995- sitting as an Ulster Unionist initially, then an Independent Unionist from October 1975 until forming the Ulster Popular Unionist Party in January 1980- and voted quite frequently with the Conservatives.

How often does someone have to vote with a party to be defined an MP for that party? Consider a hypothetical Liberal Democrat MP who chooses to become an Independent but keeps in contact with the Labour Whips Office and votes with the Labour leadership more frequently than many Labour MPs. Would they be considered a Labour MP? If not, could someone get round an "automatic by-election if you change parties" rule this way?

Some Governments have faced major rebellions which led to several MPs losing the whip- Conservatives over Suez in May 1957, Labour over post-devaluation economic reform in February 1968.

But the one which is most recent is the Maastricht one. This was over the Treaty of Maastricht which had been signed in February 1992. Traditionally treaties were ratified by the Royal Prerogative, although the Constitutional Reform & Governance Act 2010 now gives Parliament a role. However, a piece of legislation- which became the European Communities (Amendment) Act 1993 was needed to introduce some changes into national law as a result of Maastricht.

One part of the Treaty was the Social Chapter, which the United Kingdom had an opt-out on. In July 1993 Labour added an amendment which had the purpose of adding the Social Chapter to the legislation. This amemdnemt led to a tie (317 votes each) and the then Speaker of the House of Commons, Betty Boothroyd, ruled that she could not create a majority where none existed and gave her casting vote with the Government.

Interestingly enough, one Conservative MP who voted with the Government was Roger Knapman, who was Conservative MP for Stroud from the June 1987 general election until being defeated by Labour at the 1997 election. In June 2004 he made a return as a Parliamentarian- but this time as a UK Independence Party Member of the European Parliament for South West England & Gibraltar.

One Conservative MP who ended up abstaining was Rupert Allason, the MP for Torbay, who lost the whip, but got it back in July 1994.

The next major event was a vote in November 1994 on what was to become the European Communities (Finance) Act 1995. And at this, 8 MPs lost the whip- Nick Budgen (Wolverhampton South West), Michael Carttiss (Great Yarmouth), Christopher Gill (Ludlow), Teresa Gorman (Billericay), Tony Marlow (Northampton North), Richard Shepherd (Aldridge-Brownhills), Teddy Taylor (Southend East) and John Wilkinson (Ruislip-Northwood). As a result, Richard Body (Holland with Boston) resigned the whip.

Now, the Whipless Nine acted as a group- the joint-fourth largest in the House of Commons. So, should they have been made to face by-elections as they had effectively formed a new parliamentary party in all but name?

The idea that if someone changes party they should face a by-election sounds simple and logical, but then scratch the surface and there are difficulties.

One question is who does an MP represent? There is the old idea that an MP owes their conscience to their constituents. And we ultimately elect people not parties, although party affiliation will play a large part.

An MP is not a delegate- as Joseph Grimond, Liberal MP for Orkney & Shetland from the February 1950 general election until retiring at the 1983 one, noted, the two great issues he supported was membership of the European Communities and the creation of a Scottish Assembly, but these were rejected by his constituents in referendums (June 1975 and March 1979 respectively). Does that mean he was failing to represent his constituents?

There are, of course, occasional high-sounding calls that on "moral issues", MPs should leave their opinions at the dooe to the Palace of Westminster and simply vote, as delegates, following whatever opinion poll a particular organisation had commissioned. Except, of course, sometimes MPs are expected to be in the vanguard, making ptogressive legislation and waiting for public opinion to catch up, or other times public opinion is so wrong and reactionary that MPs have a duty to ignore it. MPs can never win.

But there are now devolved legislatures using the Additional Members System, which brings me to an article in The Scotsman by Brian Monteith, who was elected as a Conservative Member of the Scottish Parliament on the Mid Scotland & Fife list at the May 1999 election, re-elected at the May 2003 election and lost the Conservative whip in November 2005.

The Scottish National Party has changed its policy on NATO, and as a result, 2 SNP MSPs for Highlands & Islands- John Finnie and Jean Urquhart- have resigned the SNP whip, and have faced calls from within their old party to resign and for Mhairi Will and Drew Hendry to take their places.

Monteith makes an interesting point about list members- they are there because of their parties, and in the SNP's case by members who opposed NATO membership.

On a purely practical level they cannot be removed and it is for them to decide whether to remain as members or not. That has been the rule that our professedly democratic parties, including the SNP, signed up to and have operated under at every election since the parliament was created. There have been ample opportunities for these parties to demonstrate their unhappiness at the arrangement that, once elected on the list, a member should resign from parliament if he or she leaves the party, by calling for a change in the legislation governing the elected status of MSPs. I am unaware of any such proposal. Furthermore, any covenant that candidates would be required to enter into before election that would force MSPs to resign has as much value or force as the SNP manifesto has for [Scottish First Minister} Alex Salmond.

By throwing away one of the SNP’s most fundamental policies the conference threw away any hold it had on Finnie and Urquhart.

Precisely. Finnie and Urquhart were elected on a platform of leaving NATO. They haven't changed their policies- the SNP has.

The thing is, parties change opinions. There are often battles for the souls of parties- someone has to win and someone lose. A change in leader can be a change of course. Some MPs might find that the party is not what they joined.

There is one form of victor's justice which involves either removing the whip or constructive resignation of the whip, pushing an MP to decide enough is enough. What is more dishonest- staying and mouthing support for something that was not party policy when they were elected or resigning the whip (with potentially joining another party)?

I worry that any legislation that forces floor-crossers to face a by-election has unintended consequences. Do we want the Whips Offices to be able to threaten MPs with a mandatory by-election? Is that justice or victor's justice?

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